In Comes PEP, Out Goes Secure Communities

When President Obama announced a series of executive actions related to immigration in November 2014, much of the reaction in Washington and around the country focused on the creation and expansion of programs that would temporarily shield some undocumented immigrants from deportation.

While these programs remain entangled in legal battles, another creation of the November executive actions — the Priority Enforcement Program (PEP) — is operational and significant to counties.

PEP enables the Department of Homeland Security (DHS) to identify potentially deportable undocumented immigrants by accessing fingerprint data that is routinely sent to the FBI by state and local law enforcement following arrests. When DHS identifies such individuals, it can request that state and local authorities notify their federal counterparts before the individual is released or transferred. Because these requests flow through DHS’s Immigration and Customs Enforcement (ICE) division, they are often referred to as “ICE holds;” more formally, they are called “immigration detainers.”

PEP did not create immigration detainers, but rather replaced Secure Communities, a similar program that was established by the Bush Administration in 2008 and significantly expanded by the Obama Administration. Before it was discontinued and replaced in Obama’s executive actions last year, Secure Communities became so controversial that hundreds of counties across the country passed resolutions refusing to participate in the program.

In replacing Secure Communities, PEP features several policy changes that will in turn change the way immigration detainers affect counties.

Public Safety Issues

Some states and counties felt that the safety of their communities was compromised by their participation in Secure Communities.

In 2013, the California state Legislature passed a law finding that “immigration detainers harm community policing efforts because immigrant residents who are victims of or witnesses to crime, including domestic violence, are less likely to report crime or cooperate with law enforcement when any contact with law enforcement could result in deportation.”

Similarly, in 2013 the King County, Wash. sheriff stated that participation in Secure Communities “can have a significant damaging effect on the relationships between law enforcement agencies and immigrant and refugee communities and this damage to trust between the immigrant community and law enforcement results in less public safety.”

In an attempt to address this issue, PEP has significantly limited the circumstances under which ICE will issue immigration detainers. Under Secure Communities, immigration detainers were routinely issued for undocumented immigrants who had no criminal history and had not been convicted of any crime. In King County, for example, 78 percent of immigration detainers issued between 2008 and 2011 against adults in the county jail addressed individuals with no criminal records or convictions.

According to DHS, under PEP ICE will only issue immigration detainers against undocumented immigrants who have been convicted of a crime and not against those who have only been arrested.

Further, the conviction must relate to a felony or repeated misdemeanors, excluding minor traffic violations. PEP supporters believe that if ICE conforms to these guidelines, fear among immigrant communities about the risk of deportation when contacting police should decrease — in turn increasing cooperation between these communities and law enforcement.

Constitutional Issues

Some counties participating in Secure Communities faced lawsuits alleging violations of the constitutional rights of the undocumented immigrants they detained. The Fourth and Fifth Amendments of the Constitution, which protect against unreasonable searches and mandates due process of law, have been held applicable to undocumented immigrants, and counties risked violating these constitutional rights when they detained undocumented immigrants under Secure Communities.

A federal court held in 2014 that Clackamas County, Ore. had violated an immigrant’s Fourth Amendment rights when she was held after her scheduled release date so that ICE could investigate her status.

Days after the ruling, the Clackamas County sheriff issued a statement announcing that his county jail would no longer hold an individual based solely on an immigration detainer. Currently, San Juan County, N.M. is involved in a lawsuit brought by three undocumented immigrants who were detained in county jail pursuant to an immigration detainer.

Under PEP, ICE will not generally ask states or counties to detain any individuals in their custody for longer than they would have otherwise been held. Rather, ICE will only request that state or local authorities provide the scheduled release date of an individual so that ICE can detain them upon their release. This should mostly shield counties from the lawsuits they were subject to under Secure Communities.

However, PEP won’t provide an ironclad shield for counties against lawsuits from detainees.

Counties will likely continue to receive some immigration detainers and they could also continue to face lawsuits for honoring these detainers.

If detainers are issued only when there is sufficient probable cause to find that an undocumented immigrant is removable, these lawsuits are less likely to succeed.

Fiscal Issues

States and counties that participated in Secure Communities often did so without much, or any, reimbursement from the federal government.

The California State Association of Counties found that in FY12, counties in California spent an estimated $300 million to incarcerate undocumented immigrants but received only $21 million — or seven percent — in reimbursements from the federal government.

The federal program that provides reimbursements, the State Criminal Alien Assistance Program (SCAAP), has routinely been targeted for cuts and its funding has decreased by more than 70 percent since FY2000, even as the number of jurisdictions applying for its funding has doubled.

In his last two budget requests, President Obama has called for the elimination of SCAAP. Currently, the program is funded at $185 million in FY15, and House appropriators have proposed increased funding of $220 million for the program in FY16.

Although the changes to ICE’s policies in PEP should decrease the number of immigration detainers issued to counties, and in turn the costs undertaken by counties to honor these detainers, it remains to be seen whether, and by how much, overall reimbursement rates to counties will increase.​